Criminal Law (Sexual Offences) (Amendment) Bill 2018: Second Stage

Question proposed: "That the Bill be now read a Second Time."

Minister of State at the Department of Public Expenditure and Reform (Deputy Kevin Boxer Moran)

I am presenting this Bill on behalf of the Minister for Justice and Equality. The Bill deals with sentencing for sexual offences and I look forward to hearing the contributions of Senators on same.

I am particularly pleased to have the opportunity to introduce this legislation to the House because it deals, in part, with legislative proposals I brought forward as a Private Member to introduce mandatory sentences for repeat sex offenders. The proposals were initiated after listening to the experiences of victims of sexual violence who had told me of the trauma they had suffered. I thank them again for sharing their experiences with me.

The Bill is part of a wider range of measures in the area of sexual offences that have been introduced recently. Members will recall the enactment of the Criminal Law (Sexual Offences) Bill 2017, which updated existing laws to combat child pornography and introduced new measures to combat the sexual grooming of children. The Act also contains important provisions surrounding criminal evidence in sexual offence trials.

In addition to the Bill being introduced, further legislation in this area is being prepared. The Sex Offenders (Amendment) Bill, which is being drafted, will enhance the monitoring of convicted sex offenders. The Criminal Law (Sexual Offences) (Amendment) Bill 2018 represents a further branch of the programme of reform. I believe it is a vital and necessary enhancement of current legislation.

It is important that sentencing provisions for sexual offences be appropriate to the offences in question. The role of legislators in sentencing is to set out the maximum sentence that can be imposed. It is then a matter for the court to decide the appropriate sentence in a particular case, taking into account all circumstances. There are a few instances in which mandatory or minimum sentences are specified in legislation. There is a mandatory sentence for murder of life imprisonment. Minimum sentences are also in place for a number of serious offences such as crimes involving drugs and firearms. The use of minimum sentences is intended to reflect the impact of such crimes on society.

The Criminal Justice Act 2007 provides for presumptive minimum sentences for repeat offenders. This applies to certain serious offences but not to sexual offences, which arguably is an anomaly. The Bill sets out presumptive minimum sentences for repeat sex offenders. The provisions will apply to those who have been convicted of a serious sexual offence and received a sentence of at least five years. If the offenders go on to commit a further offence within ten years, a presumptive minimum sentence will apply. It should be acknowledged that many convicted sex offenders are managed effectively on their release from prison through the Probation Service and An Garda Síochána and do not go on to commit further offences. The measures in place for the management of sex offenders, which are to be enhanced in the Sex Offenders (Amendment) Bill, play an important role in preventing reoffending. However, a small number go on to offend again. In putting in place these provisions the Government is recognising the impact of sexual offences both on individual victims and society as a whole and ensuring appropriate measures will be available to the Judiciary in sentencing to ensure these crimes can be dealt with effectively and appropriately.

The Bill proposes to equalise the penalties for incest by both male and female offenders. Currently, the sentence for incest by a male is life imprisonment, while for a female, it is a maximum of seven years. It is proposed to equalise the penalties by lowering the sentence for incest by a male to ten years and increasing the sentence for a female to the same level.

Turning to the Bill, I draw the attention of the House to the main proposals contained within. Sections 2 and 3 equalise the maximum penalty for incest by a male and a female at ten years' imprisonment by way of an amendment to the Punishment of Incest Act 1908. Under the Act, incest by a male carries a sentence of up to life imprisonment, whereas incest by a female carries a maximum sentence of seven years' imprisonment. The Department of Justice and Equality has been advised by the Office of the Attorney General that the difference in penalty between a man and a woman could give rise to a constitutional challenge. The proposed legislation equalises the maximum penalties for the separate offences of incest by a male and a female at ten years' imprisonment. The new provision brings the provisions up to date and into line with section 1 of the 1908 Act. At present, a female aged over 17 years who is convicted of an incest offence is liable to imprisonment for up to seven years.

I note that Part 5 of the Criminal Law (Sexual Offences) Act 2017 contains a number of other provisions regarding the penalty for incest. These provisions have not yet been commenced, pending the equalisation of the penalties for incest in this legislation. The provisions in sections 4 and 5 of the Bill have been developed based on the proposals brought forward by me in the Criminal Justice (Commission of Sexual Offences) (Amendment) Bill.

Section 4 provides for the insertion of a new section 58 into the Criminal Law (Sexual Offences) Act 2017. The new section provides that, where an offender is convicted of a sexual offence listed in Schedule 1 of the 2017 Act and sentenced to imprisonment for a period of at least five years and is convicted of a further offence listed in Schedule 1 within ten years, the court shall, when imposing sentence for that offence, specify the minimum term of imprisonment to be served by the person. According to the provisions, the minimum period of imprisonment shall be three quarters of the maximum term of imprisonment prescribed by law in respect of such an offence and, where the maximum term is life imprisonment, the minimum shall be specified as a term of not less than ten years. However, the court will have discretion in the application of the sentence if it is satisfied that this would be disproportionate in all the circumstances of the case.

Section 5 inserts a Schedule into the Criminal Law (Sexual Offences) Act 2017. The Schedule lists the offences to which the provisions of the new section 58 of the 2017 Act will apply. All of the scheduled offences are offences of a serious nature where the maximum penalty on conviction on indictment is five years' imprisonment or above.

I think the House will agree that any measure which seeks to strengthen legislation governing sexual offences is of the utmost importance. I hope such measures will be given due consideration. I look forward to a constructive and fruitful debate.

Senator Lorraine Clifford-Lee

I thank the Minister of State for his overview of this very important Bill which Fianna Fáil will support. Increased sentences for these crimes are very important, but the Government has failed to establish a sentencing commission, meaning that when this legislation is in place, there will continue to be huge inconsistencies in sentencing. In April 2018 a judge, in sentencing a man who had been convicted for the repeated rape of his granddaughter, described the lack of rape sentencing guidelines as somewhat bizarre. She specifically pointed to the fact that while there had been a lot on general principles in sentencing, there had been very little in the way of guidelines to guide judges in making their decisions. In 2013, Fianna Fáil published a Bill which called for the establishment of a judicial sentencing commission to prepare sentencing guidelines for the Judiciary. It formed part of our manifesto for the 2016 general election. Similar Bills followed from other parties but, despite paying lip service to the need for consistency in sentencing, the Government has failed repeatedly to prioritise legislation of this nature. As judges, victim groups and Opposition parties have been calling for such legislation for a long time, I would like the Government to address the issue. While I welcome the Bill, it is only a first step. Perhaps the Minister of State might bring that message back to the Minister for Justice and Equality, Deputy Flanagan.

Senator Martin Conway

I welcome the Minister of State. As I remember when this legislation was flagged, it is great to see it being progressed. I congratulate the Minister of State.

It was bizarre that there were different sentences for males and females who perpetrated crime. It does not embody the equality we all want to see. It was inappropriate, not in keeping with best international practice and did not meet the standard we wanted to set. Therefore, I welcome the new provision.

On the maximum sentence of ten years replacing a life sentence for a man and seven years for a female convicted of this heinous crime, I think the life sentence for both should be left as it is. That would give the judges a bit of discretion. In fairness, the Minister and his officials and advisers probably have a reason. Perhaps that is the international best practice or the international standard. There is logic to a sentencing commission but that is a much bigger discussion and is not for this Bill. An operation like the Citizens' Assembly or the Law Reform Commission, if it has not considered it already, could look at it. Judges do not always get it right. They differ. Some people go to jail and others do not. It is a bit like "doctors differ and patients die". There is logic in a certain standardisation but it is a much bigger discussion.

I suspect and hope that there is unanimous support for the Bill in the House. The father of the House, Senator Norris, will concur with me when I say that there is one message that Seanad Éireann does deliver. When it comes to issues that are of national importance like this, Seanad Éireann has a custom of being very united. This Bill is important. We should sometimes look at the glass as being half full. Too often we see it as half empty. This is progress. It follows the domestic violence legislation that was signed into law just after Christmas by President Higgins.

I have just come from a meeting of the Oireachtas Joint Committee on Justice and Equality where we had the new Garda Commissioner, Drew Harris, in for three hours of intensive scrutiny by people from across the political spectrum. He performed very well. I believe he has the confidence of the public and that the public is very much still with him. He is very accessible. He told us in the committee room today that any individual who wanted could ask to see him and discuss their case with him, whether they are a victim of crime or someone involved in a road traffic collision. He is endeavouring to meet those who have felt they were not properly listened to or taken seriously by An Garda Síochána. If a member of the public writes to the Garda Commissioner looking for a meeting, it is a very positive step that the Commissioner would meet him or her. We are a country of 4 million people and if someone writes to or rings the Minister of State, Deputy Moran, or any of us, we are prepared to meet them. It is certainly very positive.

Of course, when it comes to sexual violence there is a lot that needs to be done. We need to put resources into supporting the victims of sexual violence. The whole issue of how victims are treated is an area where we have not covered ourselves in glory over the years. There is now resolve and determination and an understanding that victims need to get support, particularly victims of sexual crime. During the court process, there is a lot to be said for supports for victims of crime while the trial is taking place. That is something we can always do better on. Ireland being the country it is, many prosecuting gardaí give enormous support to victims above and beyond the call of duty. The Garda force has often been kicked around, as it were, certainly in recent years. We have to recognise the good work gardaí do as well.

I do not think the Minister of State is going to have any opposition to this important legislation in this House.

Senator David Norris

I welcome the Minister of State to the House, although I am a little bit puzzled. I know he is talented but he is described as the Minister of State at the Department of Public Expenditure and Reform with special responsibility for the Office of Public Works and flood relief. I am not sure what connection that has with sexual offences.

Senator Martin Conway

The whole of Government is responsible.

Senator David Norris

Exactly. I am not challenging the Minister of State's credibility. I just think it is an unusual situation.

Senator Conway spoke about equality across the board. I completely agree with this. I have just one question for the Minister of State and his advisers. Some years ago, legislation was introduced which effectively said that a sexually inexperienced 14 year old boy who was seduced by a 17 year old sexually experienced girl was automatically guilty of rape. In other words, the person who was seduced was held to be guilty of rape. I protested against this and I was just wondering if it is still in force. It certainly flies against the face of equality. It is absolute madness. I said it at the time and got into a lot of trouble over it.

I welcome some aspects of the Bill. However, I am a little concerned about section 3, which reads:

The Act of 1908 is amended by the substitution of the following section for section 2:

“2. Any female person of or above the age of 17 years, who with consent permits her grandfather, father, brother or son to have carnal knowledge of her (knowing him to be her grandfather, father, brother or son, as the case may be), shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding 10 years.”.

This calls into question the whole idea of consent. To what degree can a girl of 17 or over be held to have consent in the normal circumstance, where it is placed into the context of the family? I think there are very few young females who voluntarily engage in sexual activity with the grandfather, father or brother. It is usually after an intensive process of grooming. I do not know of any cases in which the female in the family could be held to be guilty of sexual aggression against the grandfather or of initiating sexual contact. If that happens, it is very rare. I wonder about convicting and sentencing somebody to up to ten years' imprisonment in a situation where they have been carefully groomed by the father, grandfather or brother and then engage in these sexual acts. I am a little bit concerned about that.

I was also a little bit surprised that there was no mention of section 5, which is very important and very welcome. It deals among other things with pornography, the exploitation of children for the purposes of child trafficking or child pornography, participation of children in pornographic performances and so on. This is a very important aspect of the Bill and is certainly welcome.

I am, of course, very much in favour of protecting victims of sexual violence. I just wonder about the aspect of grooming in terms of section 3. I am also curious to know the situation in respect of a sexually inexperienced 14 year old boy being seduced by a sexually experienced 17 year old girl and still automatically being convicted of rape. If that provision is still in place, it is something the Government needs to look at. Senator Conway talked about equality across the board. That is certainly not equality. It is a violation of common sense.

Senator Martin Conway

I agree, in principle.

Senator David Norris

When I raised this, I was accused of all kinds of things, of being soft on paedophilia and all the usual rubbish, but I think I was right. I welcome the Minister of State. I just have some reservations.

Senator Niall Ó Donnghaile

Gabhaim buíochas leis an Aire Stáit as a bheith linn. Sinn Féin broadly supports the Bill. It appears to contain changes in the law that we believe to be sensible and necessary, especially in respect of equalisation of proposed sentencing between genders, as has been touched on.

I believe much more could be done in terms of the sentencing guidelines. The Bill has two primary purposes, which are to amend the Punishment of Incest Act 1908 to address gender anomalies, and to amend the Criminal Law (Sexual Offences) Act 2017 to provide minimum sentences for repeat sex offenders. We support both purposes. Sinn Féin and Fianna Fáil raised the issue of sentencing harmonisation during the debate on the 2017 Act. The Minister listened to the points put during the debate and responded in this Bill, with a sentence of up to ten years to apply to men and women.

Anomalies remain in the law on incest which require further consideration. The wording still implies that a woman cannot initiate incest, as it is worded, "Any woman who permits". Likewise, it is limited to carnal knowledge, and therefore excludes acts of abuse and incest that fall short of intercourse. It also excludes certain sexual relationships. These elements require amendment and I ask the Minister of State to consider this as an opportunity to address them.

The significant amendment to the Act of 2017 is detailed and welcome. It covers circumstances where an offender is convicted of a sexual offence listed in the Schedule to the Criminal Law (Sexual Offences) Act 2017 and is sentenced to imprisonment for a period of at least five years, and is subsequently, within a period of ten years, convicted of a further offence listed in the Schedule. The court shall, when imposing sentence for that offence, specify the minimum term of imprisonment to be served by the person. The minimum period of imprisonment shall be three quarters of the maximum term of imprisonment prescribed by law. In respect of such an offence and where the maximum term is life, the minimum shall be specified as a term not less than ten years. The court will have discretion in the application of the sentence if it is satisfied that this would be disproportionate in all the circumstances of the case. In circumstances where an offender has committed a second sexual offence while being sentenced for the first one, the length of the sentence handed down for the second offence will be a minimum of three quarters of the first sentence. Discretion on sentencing is built into the Act, hence a presumptive minimum, as opposed to a mandatory minimum, will be in place. This was described by Mr. Thomas O'Malley in Sentencing Law and Practice as a, "significant safety valve".

Repeat offenders are clearly very dangerous to the public and have not engaged in or benefitted from any rehabilitation services provided to them. Sexual assault or any crime of a sexual nature is a very serious crime and should carry one of the highest penalties. While not perfect, the law dealing with sexual offences is ever changing. We can still do much more to protect the victims of sexual offences, be that their treatment by the courts or increasing funding to services dealing with victims of such crimes.

Generally speaking, there is a lack of public confidence in the State's institutions with a direct responsibility for keeping the public safe, namely, the police and the Judiciary. There is an urgent need for An Garda Síochána to modernise its IT systems to ensure its capacity to record data is accurate, fit for purpose and helps to arrest and convict criminals. This matter was touched on by the Commission on the Future of Policing in Ireland. The Minister of State must address this as a matter of priority going forward. A better and more comprehensive approach to reform of sentencing where it relates to sexual offences is required. The Minister for Justice and Equality has agreed with my colleague, Deputy Ó Laoghaire, and said that he supports this approach and that it must be progressed.

There are wide disparities in sentencing, including sentencing for sexual offences. There are undoubtedly issues relating to inconsistency, leniency and late sentences. Time and again sentences are handed down which are, quite frankly, inadequate. As a result the public does not trust the justice system to deliver sentences which fit the crime. As legislators we have a duty to address what is a considerable issue regarding sentencing. It is my party's belief that collating, publishing and ensuring judges have these parameters is the best way to ensure consistency in sentencing. The Minister for Justice and Equality needs to respond to the assurances he has already given regarding minimum sentencing guidelines as we move ahead and, I hope, in his absence, that the Minister of State may be able to touch on some of that.

Sinn Féin will be supporting the Bill. Sexual offences, we all know and agree, are especially heinous, intrusive and inherently violent and cause long-lasting damage to their victims. It is important that we have strong enough legislation to enable us to tackle it, and to ensure that the sentences fit the crime.

Minister of State at the Department of Public Expenditure and Reform (Deputy Kevin Boxer Moran)

The Judicial Council Bill is due to introduce a sentencing committee. The Minister is proposing that it is given the power to draw up sentencing guidelines.

On penalties for incest, brought up by my good friend, Senator Conway, the issue arose during Report Stage of the Criminal Law (Sexual Offences) Bill 2015, which intended to increase the penalties for incest committed by females up to a maximum of life imprisonment. However, Deputies voted against that proposed increase and a maximum sentence for females.

I take on board the comments made by Senator Norris. Grooming is a separate offence and the investigating authorities would have recognised that. If a woman has not consented then no offence has been committed by her. The Senator asked why I am here, and he is quite right to wonder what flooding has to do with this, but it is my legislation. Before I came into the House I met so many people from all areas of the country, but one person in particular from the Mullingar area, who had brought this matter to a number of Members of the House and sought their support. I took the time to meet her and we formulated this legislation.

Senator David Norris

I congratulate the Minister of State.

Deputy Kevin Boxer Moran

I am delighted, as a new Minister of State, to be bringing forward this legislation on Second Stage. It is on the final leg of its journey towards becoming legislation and I appreciate the Senator's comments. Indeed, I appreciate the comments and support of all the Senators who have contributed today. I also thank my own Department and the Department of Justice and Equality, the officials from which are with me today and who have supported and helped me to get through this over the last number of weeks in the Dáil and at committee. I also thank the Minister for Justice and Equality, Deputy Flanagan, for his support, as well as Deputy Fitzgerald, who supported this at the very earliest stages. The man who wrote the legislation was my adviser, Mr. Eugene Deering. As a new Minister of State, it is great to get this legislation through. I have a land and conveyancing Bill coming through which seeks to keep people in their homes. I hope to get that through the House in the near future.

Sitting suspended at 1.20 p.m. and resumed at 3 p.m.

Seanad Éireann debate -
Wednesday, 13 Feb 2019